# Amicus Curiae Brief — American Trucking Assns., Inc. v. Scheiner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 483 U.S. 266

## Text

IN THE
Supreme Court of the United States

OCTOBER TERM, 1986

AMERICAN TRUCKING ASSOCIATIONS, INC.., et al..,
Anvvellants.
Vv. i v
JAMES I. SCHEINER, SECRETARY OF THE
DEPARTMENT OF REVENUE, et al.,
A ppe llees.

On Appeal from the Supreme Court of Pennsylvania

MOTION OF YELLOW FREIGHT SYSTEM, INC,
CRAIG TRANSPORTATION CO.
NORTH AMERICAN VAN LINES, INC. AND
B. I. TRANSPORTATION, INC. FOR LEAVE TO
FILE BRIEF AS AMICI CURIAE AND BRIEF
AS AMICI CURIAE IN SUPPORT OF APPELLANTS

LESTER M. BRIDGEMAN
Counsel of Record

Miller, Hamilton, Snider,
Odom & Bridgeman

Suite 1900

1112 Sixteenth Street, N.W.

Washington, D.C. 20036

(202 )429-9223

Counsel for Yellow Freight
System, Inc..,
Craig Transportation Co.,
North American Van
Lines, Inc., and B. I.

Transportation, Inc

—
WILSON - Eres PRINTING Co Inc 789-0096 - WASHINGTON Cc

—ee

IN THE
Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-357

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,
Appellants,

Vv.

JAMES I. SCHEINER, SECRETARY OF THE
DEPARTMENT OF REVENUE, et al.,
Appellees.

On Appeal from the Supreme Court of Pennsylvania

MOTION OF YELLOW FREIGHT SYSTEM, INC,
CRAIG TRANSPORTATION CO,
NORTH AMERICAN VAN LINES, INC. AND
B. I. TRANSPORTATION, INC,
FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

| To The Honorable Chief Justice and Associate Justices
of the Supreme Court of the United States:

Pursuant to Rule 42 of the Rules of this Court, Yellow
Freight System, Inc. (“Yellow”), Craig Transportation
Co. (“Craig”), North American Van Lines, Inc. (“North

2

American”), and B. L. Transportation, Inc. (“B. L”) re
spectfully move for leave to file the accompanying brief
as amici curiae. Appellants have consented to the filing
of this brief ; appellees have not.

INTEREST OF YELLOW, CRAIG, NORTH AMERICAN,
AND B. L

This appeal presents inter alia the question whether
state highway use taxes that impose a substantially
higher effective tax rate on trucks registered outside the
taxing State than on trucks registered in it discriminate
against interstate commerce in violation of the Com-
merce Clause of the United States Constitution. The
four interstate motor carriers seeking to file the accom-
panying brief as amici curiae are subject to the chal-
lenged taxes—the Pennsylvania $25-per-truck marker
fee and $36-per-axle tax—and to similar highway use
taxes imposed by other states. As a victim of the dis-
crimination inflicted by these taxes, each carrier amicus
has a direct and substantial interest in this appeal.

This Court has long held that in reviewing a Com-
merce Clause challenge to a state tax, it is “not the tax
in a vacuum of words, but its practical consequences for
the doing of interstate commerce in applications to con-
crete facts [that] are our concern.” Nippert v. Rich-
mond, 327 U.S. 416, 431 (1946). The continuing spread
of non-mileage proportioned highway taxes (adopted by
seven states since 1980) creates an increasingly serious
discriminatory impact on movants. Movants have first
hand experience with the practical effects of discrimina-
tory state highway taxes and can inform this Court in
concrete dollars and cents terms of the cumulative burden
imposed by such taxes on interstate motor carriers.

3

A grant of leave to file the accompanying brief as
amici curiae is, therefore, clearly warranted.

Respectfully submitted,

LESTER M. BRIDGEMAN
Counsel of Record

Miller, Hamilton, Snider,
Odom & Bridgeman

Suite 1900

1112 Sixteenth Street, N.W.

Washington, D.C. 20036

(202 )429-9223

Counsel for Yellow Freight
System, Inc.,
Craig Transportation Co.,
North American Van
Lines, Inc., and B. I.
Transportation, Inc.

January 20, 1987

TABLE OF CONTENTS

Page
INTEREST OF THE AMICI CURIAE 2
TATA a oie 2
ARGUMENT ........ ae eT Tee nee ae ie Diamine: 6

I. PENNSYLVANIA’S MARKER FEE AND
AXLE TAX IMPOSE PER-MILE COSTS ON
OUT-OF-STATE MOTOR CARRIERS SEV-
ERAL TIMES THE COSTS THAT THE
TAXES IMPOSE ON THEIR IN-STATE
COMPETITORS sane sadaendintunseninnenene 6

Il. FUEL TAXES—A NON-DISCRIMINATORY
FORM OF STATE HIGHWAY TAXATION—
PROVIDE A READY ALTERNATIVE TO
TAXES NOT PROPORTIONED TO MILE-

AGE ...... sneneiein tienen 12

CONCLUSION eeinsistanecnesdentinieninnamenemneinemiaiens 13

ii

TABLE OF AUTHORITIES
Cases:

American Trucking Associations, Inc. v. Gray, 55
U.S.L.W. 3175 (U.S., appeal docketed Sept. 3,
1986) (No. 86-358) .. TES aE

Armco, Inc. v. Hardesty, ‘467 U. s. 638 (1984)

Capitol Greyhound Lines v. Brice, 339 U.S. 542
(1950) . eeemmeiniiiions

Lawfulness of Volume Discount Rates—Motor
Common Carrier of Property, 365 I.C.C. 711
(1982) - =

Lewis v. BT Inv. Managers, Inc., 447 U.S. 27
(1980)

National Bellas Hess, Ine. v. Department of Reve-
nue, 386 U.S. 753 (1967)

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)

Constitution, statutes, and rule:

United States Constitution, Commerce Clause

Motor Carrier Act of 1980, Pub. L. No. 96-296, 94
Stat. 793-826

Ark. Stat. Ann. (Supp. 1985) :

75-817.2

75-817.3 (a) (3)

75-817.3 (a) (4)

15- S17. 3 (a) (5)
5-12

Ark. Stat. Ann. (Repl. 1979) :

Yr wm

oe)

6 eS ee 6 ee 8

~]
nao

' ‘

—

a)

i

="

un
~]
-
mo
i)
or)

te)

Ind. Code Ann. § 6-6-8 (Burns Supp. 1986)
Ky. Rev. Stat. Ann. § 138.660(4)-(7) (Supp.
1986)

Md. Transp. Code Ann. § 13-423 (a) (1984)
N.J. Stat. Ann. § 54.39 A-10 (West Supp. 1986)

Page

passim

iii

TABLE OF AUTHORITIES—Continued

Page
Pa. Cons. Stat. Ann. tit. 72, § 26lla et seq. (Pur-
don 1964) 13
Pa. Cons. Stat. Ann. tit. 72, § 2614.1 et seq. (Pur-
don 1964) 13
Pa. Cons. Stat. Ann. tit. 72, § 2617.1 et seq. (Pur-
don 1964) . 13
Pa. Cons. Stat. Ann. tit. 72, § 7401(3)2(b) (Pur-
don Supp. 1986)
Pa. Cons. Stat. Ann. tit. 75 § 2102 (Purdon 1981) 12
Pa. Cons. Stat. Ann. tit. 75 § 9901 et seq. (Purdon
Supp. 1986) -... 12
Vt. Stat. Ann. tit. 23, §§ 415, 3007, 3010 (1978 and
Supp. 1985) 12
Sup. Ct. R. 36 l
Miscellaneous:
AMERICAN TRUCKING ASSOCIATIONS, INC., FINAN-
CIAL & OPERATING STATISTICS, MOTOR CARRIER
ANNUAL REPORT 1978-85 eds.) 4
C. A. TAFT, COMMERCIAL MOTOR TRANSPORTATION
(1986) 4
Craig Transportation Co., 1985 Annual Report M
to the ICC 8
North American Van Lines, Inc., 1985 Annual Re-
port M to the ICC 8
Yellow Freight System, Inc., 1985 Annual Report
M to the ICC 8

1982 CENSUS OF TRANSPORTATION, TRUCK INVEN-
TORY & USE SURVEY 2
1984 I.C.C. Ann. Rep ' 2,4

IN THE
Supreme Court of the United States

OCTOBER TERM, 1986

AMERICAN TRUCKING ASSOCIATIONS, INC., et al..,
Appellants,
Vv.

JAMES I. SCHEINER, SECRETARY OF THE
DEPARTMENT OF REVENUE, et al..,
Appellees.

On Appeal from the Supreme Court of Pennsylvania

BRIEF OF YELLOW FREIGHT SYSTEM, INC.
CRAIG TRANSPORTATION CO.
NORTH AMERICAN VAN LINES, INC. AND
B. I. TRANSPORTATION, INC.
AMICI CURIAE, IN SUPPORT OF APPELLANTS

Pursuant to Rule 36 of the Rules of this Court, Yellow
Freight System, Inc., Craig Transportation Co., North
American Van Lines, Inc., and B. I. Transportation, Inc.
respectfully submit this brief as amici cure in support
of appellants.

INTEREST OF THE AMICI CURIAE

The interest of Yellow, Craig, North American, and
B. I. in this matter is set forth in the accompanying Mo-

tion for Leave to File Brief as Amici Curiae.
STATEMENT

The Pennsylvania marker fee and axle tax and similar
discriminatory taxes imposed by other states adversely
affect the entire interstate motor carrier industry. That
industry comprises hundreds of thousands of businesses,
ranging from single truck owner-operators to major com-
panies that operate several thousand trucks each. Truck-
ing firms are either “for-hire” carriers or “private” car-
riers. For-hire carriers transport other people’s freight
for compensation, while private carriers (manufacturers,
merchants, and others) transport their own goods. To-
gether, the two types of carriers utilize over 1.5 million
trucks to haul goods approximately 46.5 billion miles
interstate each year.’ Truck transportation is critical to
almost every other line of interstate commerce, and ulti-
mately to the livelihoods and leisure activities of virtu-
ally all Americans.

The four intersta.2 carrier amici represent a cross-
section of this major industry. Amicus Yellow Freight
System, Inc. (“Yellow”), based in Overland Park, Kan-
sas, is one of the largest of the over 32,000 interstate for-
hire motor carriers regulated by the Interstate Com-
merce Commission (“ICC”). 1984 LC.C. Ann. Rep. Ap-
pendix E, Table 1. Yellow transports less-than-truckload

‘The U.S. Department of Commerce Bureau of the Census’ 1982
CENSUS OF TRANSPORTATION, TRUCK INVENTORY & Use SURVEY
indicates that for-hire carriers annually operate approximately
650,000 trucks in nearly 30 billion miles of interstate operations
p. 8, Table 2) while private carriers annually operate approxi-
mately 800,000 trucks (p. 33, Table 6) in over 16.5 billion miles of
long range transportation (p. 90, Table 12

shipments of general commodities throughout the United
States and parts of Canada using 533 terminals (points
of consolidation and distribution). In 1985, Yellow em-
ployed over 3,000 trucks to haul freight some 417 million
miles interstate. Yellow Freight System, Inc., 1985 An-
nual Report M to the ICC, Schedule 720, Line 11b;
Schedule 730, Line 6b.

Amicus Craig Transportation Co. (“Craig”) of Perrys-
burg, Ohio, is a regulated interstate common carrier of
full truckload shipments of general commodities. In
1985, it operated into and through approximately 32
states, using 96 vehicles leased from owner-operators to
travel approximately 5.7 million miles. Craig Transpor-
tation Co., 1985 Annual Report M, to the ICC, Schedule
720, Line 11b; Schedule 730, Line 6b. Craig is a typical
example of the many medium-sized carriers that operate
regionally.

Amicus North American Van Lines, Inc. (“NAVL”),
headquartered in Fort Wayne, Indiana, is a leading
household goods carrier (moving company), as well as a
regulated common carrier of general commodities. NAVL
is thus representative of both specialty carriers (includ-
ing tank truck carriers, automobile transporters, and
others) and general freight carriers. NAVL’s household
goods division operates approximately 1,500 leased truck
tractors throughout the country. Together with NAVL’s
general freight fleet, these trucks travel approximately
403 million miles in interstate commerce annually.
North American Van Lines, Inc., 1985 Annual Report M
to the ICC, Schedule 720, Line 11b; Schedule 722, Line 22.

Amicus B. I. Transportation, Inc. (“B. 1.”), based in
Burlington, North Carolina, is the transportation arm of
Burlington Industries, a major textile manufacturer.
Utilizing approximately 345 trucks, B. I. transports
Burlington’s products nationwide. Its fleet travels ap-

4

proximately 41.5 million interstate miles annually. B. I.
is representative of the nation’s over 119,000 private mo-
tor carriers. See C. A. TAFT, COMMERCIAL MOTOR TRANS-
PORTATION 7 (1986). Those carriers use over 800,000
trucks to conduct more than 16.5 billion miles of long
range operations annually. See footnote 1, supra.

Competition in the interstate trucking industry has in-
creased significantly since passage of the Motor Carrier
Act of 1980, Pub. L. No. 96-296, 94 Stat. 793-826. Over
12,000 new interstate operations have been granted
broad, unencumbered authority by the ICC. 1984 L.C.C.
Ann. Rep. 50. The ICC has noted that there is now
“vigorous price competition in the trucking industry”
(see Lawfulness of Volume Discount Rates—Motor Com-
mon Carrier of Property, 365 1.C.C. 711, 714 (1982)),
which greatly limits carriers’ ability to set rates high
enough to offset discriminatory state taxes. In fact, the
trucking industry’s net income every year since 1978 has
been below 3 percent of operating revenues, and in 1985,
33 percent of the carriers operated at a loss. AMERICAN
TRUCKING ASSOCIATIONS, INC., FINANCIAL & OPERATING
STATISTICS, MOTOR CARRIER ANNUAL REPORT (1978-85
eds.) [based on carriers’ Annual Reports M filed with the
ICC], Summary Table I, Column 7; Section I-IV, Line
45—Net Carrier Operating Income.

The competitive impact of discriminatory state taxes
such as the Pennsylvania marker fee and axle tax—both
in terms of competition with locally based carriers and
in terms of intermodal competition in the long haul
freight business—is a matter of grave concern. In the
highly competitive environment in which they operate,
interstate motor carriers are especially vulnerable to in-
creased costs resulting from discriminatory taxes. Com-
petition also requires flexibility and deference to cus-
vomer needs. Because the vagaries of demand make it

5

extremely difficult for carriers to predict where trucks
will be needed or what routes they will have to take, it
is virtually impossible for interstate carriers to control
their level of highway use in any one state in an effort
to avoid or mitigate the impact of such taxes.

For example, appellant Old Dominion Freight Line,
Inc. testified through one of its officials that all its inter-
state vehicles must be “permitted or qualified to go any-
where within our operating authority” (J.A. 53). An
employee of Leonard Brothers Trucking Company, Inc.
likewise testified that “|wlje have no way of knowing
where the freight is going to go until a customer calis. So
we have to have the trucks legalized and ready to go” (J.A.
57). Interstate carriers, therefore, are unable to control
either their level of highway use in a state or the number
of vehicles they must qualify for operation in that state.
This compounds the discrimination attendant to flat per-
truck qualification taxes, such as the Pennsylvania marker
fee and axle tax, in that carriers must qualify trucks
which may never enter the taxing state. The representa-
tive of Leonard Brothers Trucking testified that of the
275 Pennsylvania markers it purchased in 1982, it put
only 225 on trucks that eventually traveled in Pennsyl-
vania (J.A. 58).

In these circumstances, interstate motor carriers of
all kinds have no choice but to pay the discriminatory
highway taxes that an increasing number of states are
exacting. Vigorous enforcement of the Commerce Clause,
as in the present challenge, represents the carriers’ only
potential salvation from these costly, unconstitutional
State taxes.

ARGUMENT

I. PENNSYLVANIA’S MARKER FEE AND AXLE
TAX IMPOSE PER-MILE COSTS ON OUT-OF-
STATE MOTOR CARRIERS SEVERAL TIMES THE
COSTS THAT THE TAXES IMPOSE ON THEIR IN-
STATE COMPETITORS.

Appellants challenge the validity under the Commerce
Clause of Pennsylvania’s former $25-per-truck marker
fee (in effect from 1980 to 1983) and its current $36-
per-axle ($180 per typical, 5-axle truck) tax. Each tax,
on its face, was found to apply both to trucks registered in
Pennsylvania and to trucks registered outside the State.
However, this Court has consistently held that in review-
ing a Commerce Clause challenge to a state tax, “|tjhe
principal focus must be the practical operation of the
statute, since the validity of state laws must be judged
chiefly in terms of their probable effects.” Lewis v. BT
Inv. Managers, Inc., 447 U.S. 27, 37 (1980) (emphasis
added). The practical effects of the marker fee and axle
tax and other highways use taxes can be determined by
examining the relative costs per mile traveled in the tax-
ing state for out-of-state, versus in-state, motor carriers
As discussed below, under such an analysis, each tax dis-
criminates heavily in favor of locally based carriers and

therefore violates the Commerce Clause.

Record evidence from a survey conducted by appellants
American Trucking Associations, Inc. (“ATA”), et al
shows that, on a classwide basis, the marker fee and axle
tax impose a far higher cost per mile on trucks registered

uutside Pennsylvania than on trucks registered in the
State (J.5. 6). To determine whether the taxes discrim
inate against the carrier amici individually, each has con

pared its own tax cost per mile (for its fleet of trucks
registered outside Pet nsyivania with the tax cost per

y ' , » +) ae . ) aole »
mile for ne average Pennsylvania-registered motor car-

rier. The amici performed the same comparison for
Arkansas’ $175-per-truck/5¢ per-mile highway use equal-
ization tax, which is under Commerce Clause challenge ir
a contemporaneous appeal.? American Trucking Associa-
Lions, Ine t Gray, 55 U S L W 8175 U.S , appeal dock-
eted Sept. 3, 1986) (No. 86-358

Table I below presents these comparisons, and demon-
trates the blatantly discriminatory impact of the Arkansas
and Pennsylvania taxes.* The tax cost-per-mile differen-
tials set forth in Table I add up quickly to huge dollar
amounts of discrimination. Table II shows how much
excess tax the carrier amici are compelled to pay as 2

result of the non-mileage proportioned highway taxe

7

inder chalienge in this appeal and Gray
Che erage tay st per mile for the Arkansas-registered and
Pennsylvania-registered irriers, set forth in Table I infr :
lerived from statistical evidenc« n this ase Penns ar
registered trucks eraged 25.857 mile n-state during calendar
ear 1981 (PX 12 i figure which. when d led int le annu
I ker fee $25 per tr ick, yields a tax st per mile of 0.10 cent
nd, when divided int tne annua xie tax f $180-per axle
truck, yields a tax st per i . t 0.70 cents ind if Dpe ts :
1 porane s cnalienge to Arkansas’ highwa ise equalization tax
imeri n Trucl ng 4s ociat ns (7? / i107 S.W 2a 759 Ark
peal docketed (U.S., filed Sept. 3, 1986) (No. 86-858) (Arkansas
registered trucks a eraged 17.770 miles n-State ring uiendal
198? PY nd i figure wl ; wher : led nt t ing annua
HUE tax of $175 per truck, yields a tax cost per n f approx
ely 1 OO entra
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10

As Table I demonstrates, the interstate carrier amici
are being forced to pay effective tax rates of 1.8 to 12.2
times their in-state counterparts’ rates. As depicted in
Table II, this rate differential results in the amici paying
hundreds of thousands of dollars in excess taxes.*

The burden associated with each state’s discriminatory
highway tax is exacerbated when such taxes are levied
by many states. “[{I]f [one State] can impose such bur-
dens, so can every other State,” thereby compounding
“the resulting impediments on the free conduct of...
interstate business.” National Bellas Hess, Inc. v. De-
partment of Revenue, 386 U.S. 753, 759 (1967). See
also Armco, Inc. v. Hardesty, 467 U.S. 638, 644 (1984)
(a state tax must be such that “if applied by every juris-
diction, there would be no impermissible interference with
free trade”) ; Capitol Greyhound Lines v. Brice, 339 U.S.
542, 557 (1950) (Frankfurter, J., dissenting) (“an in-
terstate carrier will be subject to privilege taxes of sev-
eral states, even though his entire use of the highways
is not significantly greater than that of intrastate oper-

”)\

ators }.

The potential cumulative tax burden today is far worse
than Justice Frankfurter envisioned because the trucking
industry has expanded dramatically over the last half
century. Along with a huge increase in the number of
interstate carriers, individual interstate carriers have

* Amici recognize that if Arkansas and Pennsylvania sought to
raise the same amount of revenue by a non-discriminatory tax
proportioned to highway use rather than by their existing discrimi-
natory taxes, the uniform tax cost per mile would be somewhere be-
tween the high rate now paid by trucks registered outside those
states and the low rate paid by the in-state carriers. The savings to
amici from such a revenue-neutral, non-discriminatory tax, while
substantial, would be somewhat less than the amounts shown in
Table II. The figures in that Table, however, are revealing in that
they reflect the magnitude of the disadvantage suffered by amici
compared to their Arkansas-registered and Pennsylvania-registered
competitors.

11

greatly expanded both in terms of the number of vehicles
they operate and the range of their operations.

All of the amici’s interstate operations have grown
dramatically. For example, amicus B. I. Transportation
in 1935 operated only two trucks and those wholly in
North Carolina and by the end of the 1930’s operated
only 13 trucks in a four state area. By contrast, B. I. in
1985 operated approximately 345 trucks nationwide.
Amicus North American’s operations have shown a simi-
lar increase. In 1942, North American operated 32
trucks, compared to over 1,500 today. Its fleet traveled
approximately 1.7 million miles in interstate commerce
in 1942, compared to over 400 million miles in 1985.
Likewise, amicus Craig, doing business as Hoefer Motor
Transportation Co., served only four states with 25 trucks
in 1962 whereas today Craig operates in approximately
32 states through 96 vehicles. Amicus Yellow has under-
gone the most significant expansion. By the end of the
1930’s, Yellow operated only 3 trucks, 15 tractors, and 13
trailers in a regional operation serving parts of only four
states. In 1985, Yellow utilized nearly 25,000 pieces of
equipment, including 3,500 tractors and over 20,000 trail-
ers, and provided a nationwide trucking service.

The major broadening of interstate motor carriers’
business operations greatly increases their vulnerability
to effectively discriminatory taxes, and significantly
heightens the harmful impact of those taxes on their bus-
inesses. Already, seven states levy some form of annual
non-mileage proportioned highway tax: Arkansas ($175
per truck), Indiana ($50 per truck), Kentucky ($150 per
truck), Maryland ($25 per truck), New Jersey ($25 per
truck), Pennsylvania ($36 per axle, amounting to $180
per truck for most interstate vehicles), and Vermont
($50 per truck).® The potential burden on interstate com-

° Ark. Stat. Ann. §§ 75-817.2, 75-817.3(a) (3), (4) and (5) (Supp.
1985). Ind. Code Ann. § 6-6-8 (Burns Supp. 1986); Ky. Rev. Stat.

12

merce from the spread of these discriminatory state taxes
is staggering. Amici Yellow, North American, and B. I.
all engage in nationwide operations, and thus are vul-
nerable to discriminatory impositions by all 48 contiguous
states and the District of Columbia. If all 49 jurisdic-
tions levied taxes like Pennsylvania’s axle tax, and the
amici had the same level of operations in each jurisdic-
tion as they have in Pennsylvania, Yellow would face
over $18.8 million in excess taxation, North American
over $33.4 million, and B. I. $1.1 million. Even a re-
gional carrier such as Craig, which operates in 32 states,
would face an enormous cumulative excess tax burden—
over $285,000.

When the challenged taxes’ discriminatory effects are
extrapolated to the interstate trucking industry as a
whole, the burdening of interstate commerce is crippling.
In view of the potentially grave adverse effects on inter-
state commerce of parochial legislation such as the Penn-
sylvania axle tax and marker fee, this Court should re-
verse the decision below and declare those taxes uncon-
stitutional.

Il. FUEL TAXES—A NON-DISCRIMINATORY FORM
OF STATE HIGHWAY TAXATION—PROVIDE
A READY ALTERNATIVE TO TAXES NOT PRO-
PORTIONED TO MILEAGE.

The discrimination suffered by interstate carriers is
all the more egregious because Arkansas and Pennsy]l-
vania could easily avail themselves of an alternative
method of highway taxation that is proportioned to each
earrier’s actual miles traveled in the state. All states,
including Arkansas and Pennsylvania, already levy fuel
sales and use taxes that are directly related to a taxpay-

Ann. § 138.660(4)-(7) (Supp. 1986); Md. Transp. Code Ann.
§$13-423(a) (1984); N.J. Stat. Ann. § 54.39 A-10 (West Supp.
1986) ; Pa. Cons. Stat. Ann. tit. 75 § 2102 (Purdon 1981); Pa. Cons
Stat. Ann. tit. 75, §9901 et seq. (Purdon Supp. 1986); Vt. Stat.
Ann. tit. 23, $§ 415, 3007, 3010 (1978 and Supp. 1985).

13

er’s level of highway use.* If maintenance requirements
justify a rise in Arkansas’ or Pennsylvania’s highway tax
revenues, those states could simply increase their existing
fuel taxes. Given the availability of this constitutionally
valid alternative, there is no justification for the discrim-
inatory taxes under challenge here and in Gray. See Pike
v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (a state
action violates the Commerce Clause where “the local
interest” [here, the raising of highway tax revenues]
“could be promoted as well with a lesser impact on inter-
state activities”).
CONCLUSION

To halt the states’ harmful attempts to protect local
interests and export their highway tax obligations, this
Court should reverse the judgment of the Supreme Court
of Pennsylvania, and strike down the challenged taxes
under the Commerce Clause.

Respectfully submitted,

LESTER M. BRIDGEMAN
Counsel of Record

Miller, Hamilton, Snider,
Odom & Bridgeman

Suite 1900

1112 Sixteenth Street, N.W.

Washington, D.C. 20086

(202)429-9223

Counsel for Yellow Freight
System, Inc., et al.,

January °%, 1987 Amici Curiae

* See Ark. Stat. Ann. §§ 75-1106, 75-1150, 75-1241, 75-1251, 75-
1269 (Repl. 1979); 75-1278 (Supp. 1985) and 72 Pa. Cons. Stat.
Ann. §§ 261la et seq., 2614.1 et seq., 2617.1 et seq. (Purdon 1964).
The more miles a truck is driven in a state, the more gallons of fuel
it consumes and the more tax is paid on the fuel. Pennsylvania also
apportions its corporate income tax, when levied on interstate car-
riers, according to the carrier’s total miles traveled in the state.
See 72 Pa. Cons. Stat. Ann. §7401(3)2(b) (Purdon Supp. 1986).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0817%3A12. Public record. Not legal advice.